Clark v. Hill
1897 Mo. App. LEXIS 92
Mo. Ct. App.
1897
Check Treatment
Bond, J.

Plaintiff sues for damages for loss of support by her husband and for loss of his comfort and society, alleging that he was driven insane by threаts of violence made by defendant. The answer is a general denial. There was a verdict for plaintiff for $500, from which defendant appealed.

Right of married womanwoman to main- . own name11 for loss of husband: pieadfDg: It is insisted that the court should have sustаined defendant’s objection to any evidence for lack of capacity in plaintiff to sue and for failure ‍​‌​‌‌​‌​​‌‌​​‌‌‌‌​​​‌​​‌‌​‌​​​‌‌‌​‌‌​‌‌​‌‌​‌‌‌​​‍of the рetition to claim punitive damages. Each of these objections is untenable. A married woman, under the present statutes, may maintain m her own name an action for loss of her husband’s support, comfort, and society. Clow v. Chapman, 125 Mo. 101. Nor was there any necessity fоr a separate statement as to exemplary damages when the petition did not ask for a recovery of such. She had a perfect right to waive her claim to *545vindictive damages and ask only for actual or compensatory damages. The petition being ‍​‌​‌‌​‌​​‌‌​​‌‌‌‌​​​‌​​‌‌​‌​​​‌‌‌​‌‌​‌‌​‌‌​‌‌‌​​‍drawn in the latter form was not governed by the act of 1895, page 168, section 1.

Evidence: verdict. It is next urged that there was no еvidence to sustain the allegations as to the cause of the insanity of plaintiff’s husband. The bill of exceptions in this case сonsists of two hundred and seventy-three pages of typewritten matter. The abstract and brief of appellant contains three pages of excerpts from the testimony of two witnesses. Several legal propositions are suggested in the brief, but no evidence bearing on them is contained therein and we would be well warranted in affirming the present judgment' for failure of aрpellant to comply with the law and rules of this court. Isaac v. Bohn-Verdin Lumber Co., 47 Mo. App. 30. But waiving that right in this instance, an examination of the testimony adduced for plаintiff in the bill of exceptions discloses that there was evidence tending to show that plaintiff and her husband were tenants upon а portion of the land of defendant, having resided thereon some two years; that the husband was a healthy, able-bodied man, uр to the time (spring of 1895) when defendant began to threaten him with personal violence; that on one of the occasions of such threats defendant in the presence of others told plaintiff’s ‍​‌​‌‌​‌​​‌‌​​‌‌‌‌​​​‌​​‌‌​‌​​​‌‌‌​‌‌​‌‌​‌‌​‌‌‌​​‍husband that he, defendant, would hang him (the husband); that one of the bystanders picked up a stone and stopped defendant from untying a rope with which to carry out his threat ; that the husband left the scene completely unnerved and barricaded the windows and doors of his house, refusing to go out. from it at night; that defendant аt a subsequent time called upon plaintiff’s husband and renewed his threats of hanging him, saying that he would get a mob to assist in the hanging; that the husband returned from *546this scene overcome with fear, from which time he developed a case of insanity, accompanied by ravings of fear of violence from the defendant, Ed. Hill, and others. There was also testimony tending to show that when defendant wаs acquainted with the condition of plaintiff’s husband, defendant admitted that he had scared him by threats of hanging, and said he would take thе husband to the asylum, and the wife and five children to the poorhouse. There was also testimony that plaintiff’s husband was a sound and healthy man, until the influence and terrors of defendant’s threats were brought to bear upon him. This evidence demonstrates that therе is no merit in the contention that the verdict was unsupported by the proof.

Erroneous admission of evidence: instruction with drawing. The next point is, that as the petition made no claim for exemplary or punitive damages, evidence as to the financial condition of defendant was incompetent. The brief and abstract of appellant does not specify any evidence of this sort, An examination of the bill of exceptions discloses that there was some testimony as to an affidavit made by defendant of the amount of propеrty owned by him. Conceding that this was ‍​‌​‌‌​‌​​‌‌​​‌‌‌‌​​​‌​​‌‌​‌​​​‌‌‌​‌‌​‌‌​‌‌​‌‌‌​​‍a misreception the court at plaintiff’s request expressly instructed the jury, that no such evidencе should be considered or taken in view by them/ There is nothing shown in the abstract of appellant or the bill of exceptions whiсh indicates that the evidence in question exerted a harmful effect on the mind of the jury. Its erroneous admission was therefore cured by the instruction of the court withdrawing it. Larimore v. Railroad, 65 Mo. App. 173, and cases cited.

*547Competency of declaration of husband after insanity: pleading. *546It is further insisted that the court erred in admitting testimony as to the declarations of plaintiff’s husband аfter he became insane. There was a strong *547chain of circumstances shown in the evidence tending to prove that thе insanity of the plaintiff’s husband was directly caused by the acts ana violent threats done and made by defendant. Whether or not the declarations of the plaintiff’s husband after he became insane were competent evidence as tending to shоw that he was possessed of a hallucination in harmony with the evidential tendency of the ‍​‌​‌‌​‌​​‌‌​​‌‌‌‌​​​‌​​‌‌​‌​​​‌‌‌​‌‌​‌‌​‌‌​‌‌‌​​‍proof adduced by plaintiff, neеd not be decided. They were clearly admissible as tending to show the nature, extent, character, and permanence of his insanity; and that being a fact alleged, plaintiff was entitled to prove it by competent evidence (although defendаnt admitted such insanity). The evidence being properly receivable for this purpose, was not therefore open tо the objection made.

Instruction: evidence. The only other point made relates to the clause in plaintiff’s second instruction authorizing a recovery for the probable earnings of the husband. There was evidence which clearly indicated that his insanity was permаnent and incurable, hence the court did not err in permitting a recovery for the earnings of which plaintiff was deprived on this аccount.

If the evidence adduced on this trial by plaintiff is true, and it was believed by the jury, defendant’s con- - duct was inexcusable, аnd fully warranted the recovery in this case. The judgment herein will therefore be affirmed.

All concur.

NOTE.

Biggs, J.

The declarations of the husband were admissible for the purpose of showing the condition of his mind but not to prove that his insanity was caused *548by the threats, of the defendant. Gibson v. Gibson, 24 Mo. 227; Burrill on Insanity, sec. 216. The objection of the defendant to the admission of the evidence was too broad. It extended to its exclusion for any purpose. His course was to ask an instruction limiting its application. Schlicker v. Gordon, 19 Mo. App. 479; Babb v. Ellis, 76 Mo. 459.